What they did on summer vacation

Posted Tue, August 20th, 2013 10:56 am by Clare Cushman

At the end of the October Term 1936, the Justices dispersed as usual in June. They needed a break. The Court was under attack by President Franklin D. Roosevelt’s Court-packing bill, which threatened to add a new Justice for each one over the age of seventy who refused to retire, under the trumped-up premise that the “Nine Old Men” (average age: seventy) were unable to keep up with their workload. Roosevelt had been frustrated by the Court’s striking down legislation designed to alleviate the country’s economic tailspin. Yet, by the time he announced the plan in February, a Court majority had finally begun upholding a few of his New Deal initiatives — thanks mainly to a fifth vote provided by Owen J. Roberts. After hammering out remarkable opinions all spring, where did the Justices go to recharge and escape the Washington heat?

Agricultural pursuits attracted several Justices. In particular, swing voter Justice Roberts returned to being a gentleman farmer in the summer. He kept a prize herd of dairy cows at his sprawling homestead in Chester County, Pennsylvania, near Valley Forge. Justice Willis Van Devanter, whose surprise announcement that he would retire at the end of the 1936 Term deflated the conservative bloc, of which he had been the intellectual leader, retreated to his 700-acre farm near Ellicott City, Maryland. There he grew corn, oats, and wheat, and raised livestock, including thoroughbred Hampshire hogs. Having grown up on a Minnesota dairy farm, Justice Pierce Butler also loved rural life. He spent his weekends at a Blue Ridge mountain community on the Maryland-Pennsylvania border, where he tended his livestock and worked on his golf game during the summer.

Two Justices ventured abroad. George Sutherland, born in Buckinghamshire, England, returned to visit his birthplace and then drove with his wife through England and Scotland before heading over to the Continent. They enjoyed taking long walks in the hills. James C. McReynolds, a bachelor, returned first to his hometown of Elkton, Kentucky, to visit relatives. Then he took a steamship to Europe in the company of friends with whom he travelled abroad each summer.

Two others had summer homes on Cape Cod. Chief Justice Charles Evans Hughes, having adeptly maneuvered during the Court-packing crisis, motored with his wife to their ocean-front home in Osterville. Louis D. Brandeis spent the entire summer at his modest grey-shingle house in Chatham, where he and his wife enjoyed canoeing, tennis, and being with their children and grandchildren.

Justice Harlan Fiske Stone and his wife made a quick trip to Mexico before settling in their cottage on Isle au Haut, a remote island in Penobscot Bay, Maine, accessible only by ferry. Stone liked to row his dory along the cragged coastline and eat lobster.

As usual, Benjamin Cardozo returned to his home in Rye, New York, where he enjoyed the company of friends. A bachelor, Cardozo particularly relished summer, finding life on the Court lonely and difficult.

The Court-packing bill fizzled out in July. The Justices were relieved that the bill’s threat no longer loomed when they returned to start the new Term in October. They also found they had a new bench-mate filling Van Devanter’s seat, an Alabama senator who had fully supported the president’s agenda. As a Justice, Hugo L. Black would help cement what came to be called the Constitutional Revolution of 1937-38. But the long summer recess had allowed both for political events to play out and for the Justices to feel refreshed before tackling more New Deal cases. Brandeis phrased it best when he touted the necessity of vacation: “I can do 12 months’ worth of work in 11, but not in 12.”

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

Download our App in the Apple Store

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.